The Judicial Power

The Judicial Power

The Judicial Power


Marbury v Madison—1803—SCOTUS—Marshall, J.

Baker v Carr—1962—SCOTUS—Brennan

Martin v Hunter’s Lessee—1816—SCOTUS—Story

Cohen v Virginia—1821—SCOTUS

Relevant Theories of Constitutional Interpretation

Legislative Power: The Commerce Clause


McCulloch v. Maryland—1819—SCOTUS

(I) Gibbons v. Ogden—1824—SCOTUS

(I) United States v. E.C. Knight Co.—1896—SCOTUS

(I) The Shreveport Rate Case—1914—SCOTUS

(I) Champion v. Ames (The Lottery Case)—1903—SCOTUS

(1) Hammer v. Dagenhart (The Child Labor Case)—1918—SCOTUS

(II) NLRB v. Jones & Laughlin Steel Corp—1937—SCOTUS

(II) United States v Darby—1941—SCOTUS

(II) Wickard v. Filburn—1942—SCOTUS

(II) Heart of Atlanta Motel v United States—1964—SCOTUS

(II) Katzenbach v. McClung—1964—SCOTUS

(III) United States v Lopez—1995—SCOTUS

(III) United States v Morrison—2000—SCOTUS

(III) Gonzales v. Raich—2005—SCOTUS

(IV) United States v. Comstock—2010—SCOTUS

(IV) NFIB v. Sebelius—2012—SCOTUS—[Commerce Question]

Legislative Power: Taxing and Spending


NFIB v. Sebelius—2012—SCOTUS—[Tax Question]

United States v Doremus—1919—SCOTUS

United States v Butler—1936—SCOTUS

Steward Machine Co. v Davis—1937—SCOTUS

NFIB v Sebelius—2012—SCOTUS—[Spending Question]

South Dakota v Dole—1987—SCOTUS

Legislative Power: Treaties & External Limits


Missouri v Holland—1920—SCOTUS

Medellin v Texas—2008—SCOTUS

National League of Cities v Usery—1976—SCOTUS

Garcia v San Antonio Metropolitan Transit Authority—1985—SCOTUS

Gregory v Ashcroft—1991—SCOTUS

New York v United States—1992—SCOTUS

Printz v United States—1997—SCOTUS

The Executive Power


Youngstown Sheet & Tube Co. v Sawyer—1952—SCOTUS

United States v Curtiss-Wright Corp.—1936—SCOTUS

Medellin v Texas—2008—SCOTUS

Dames & Moore v. Reagan—1981 —SCOTUS

Presidential Powers: Harold Koh Testimony before the Senate Foreign Relations Committee

Hamdi v Rumsfeld—2004—SCOTUS

Boumediene v Bush—2008—SCOTUS

National Labor Relations Board v Noel Canning—2014—SCOTUS

Individual Rights: Due Process

Overview (Protects Right to Certain Conduct)

(I) Lochner v New York—1905—SCOTUS

(I) Nebbia v New York—1934—SCOTUS

(I) West Coast Hotel Co. v Parrish—1985—SCOTUS

(I) United States v Carolene Products—1985—SCOTUS

(II) Meyer v Nebraska—1923—SCOTUS

(II) Pierce v Society of Sisters—1925—SCOTUS

(II) Skinner v. Oklahoma—1942—SCOTUS

(II) Griswold v Connecticut—1965—SCOTUS

(II) Eisenstadt v Barid—1972—SCOTUS

(II) Moore v City of East Cleveland—1977—SCOTUS

(II) Zablochi v Redhail—1978—SCOTUS

(II) Michael H v. Gerald—1989—SCOTUS

(III) Roe v Wade—1973—SCOTUS

(III) Maher v Roe—1977—SCOTUS

(III) Harris v MaRae—1923—SCOTUS

(III) Planned Parenthood v Casey—1992—SCOTUS

(III) Stenberg v Carhart—2000—SCOTUS

(III) Gonzales v Carhart—2007—SCOTUS

(IV) Roberts v U.S. Jaycees—1984—SCOTUS

(IV) Bowers v Hardwick—1986—SCOTUS

(IV) Lawrence v Texas—2003—SCOTUS

(IV) United States v Windsor—2013—SCOTUS ***** Move TO EPC*****

Individual Rights: Equal Protection

Overview (Protects Status)

New York City Transit v Beazer—1979—SCOTUS

Williamson v Lee Optical—1955—SCOTUS

US Dept of Agriculture v Moreno—1973—SCOTUS

City of Cleburne v. Cleburne Living Center—1985—SCOTUS

Minnesota v Clover Leaf Creamery Co—1981—SCOTUS

Railway Express Agency v New York—1949—SCOTUS

Village of Willowbrook v Olech—2000—SCOTUS / Oregon

Strauder v West Virginia—1880—SCOTUS

Plessy v. Furguson—1923—SCOTUS

Brown v. Board of Education of Topeka—1925—SCOTUS

Korematsu v United States—1944—SCOTUS

Loving v Virginia—1967—SCOTUS

Yick Wo v Hopkins—1886—SCOTUS

Hernandez v Texas—1954—SCOTUS

St Francis College v Al-Khazraji—1987—SCOTUS

Washington v Davis—1976—SCOTUS

Personnel Administrator of Massachusetts v Feeney—1977—SCOTUS

Village of Arlington Heights v Metropolitan Housing Development Corp—1977—SCOTUS

Regents of University of California v Bakke—1978—SCOTUS

Grutter v Bollinger—2003—SCOTUS

Gratz v Bollinger—2003—SCOTUS

Fisher v Texas—2013—SCOTUS

Parent’s Involved in Community Schools v Seattle School District #1—2007—SCOTUS

Frontiero v Richardson—1973—SCOTUS

Craig v Boren—1976—SCOTUS

United States v Virginia—1996—SCOTUS

Romer v Evans—1996—SCOTUS

(IV) United States v Windsor—2013—SCOTUS

Enforcing Individual Rights

The Judicial Power


“It is emphatically the province and the duty of the judicial department to say what the law is”

Original Jurisdiction -- SCOTUS has held that Congress does not have the authority to expand the original jurisdiction of the Supreme Court. SCOTUS has original jurisdiction in all cases arising under the Constitution, involving (1) ambassadors, (2) other public ministers and consuls and (3) cases in which a state is a party

Supremacy Clause-- Marshall based Judicial Review in the Supremacy clause -- read narrowly; the clause establishes that Federal law is supreme but it does not say (1) who decides and (2) finality -- read broadly = judicial review!

  • Counter-Majoritarian Difficulty -- the idea that judges, who are unelected, are the ones charged with interpreting the constitution -- opposes judicial review of legislative acts which represent the “popular will”
  • The Canon of Constitutional Avoidance stems from the Supremacy clause and the presumption that Congress legislates in light of the constitutional boundaries of its power
  • When there are two potential readings of a statute, one which violates the Constitution and the other which does not, the Court is obliged to use the non-violating interpretation -- provided it is fairly plausible

Political Question Doctrine -- Prominent on the surface of nonjusticiable political questions are generally (First two most important):

  1. A constitutional commitment of the issue to a coordinate political department
  2. Lack of judicially discernable standards for resolving the dispute
  3. Impossibility of deciding without policy determination clearly designed for non-judicial discretion
  4. Impossibility of independent resolution without expressing a lack of respect to another branch
  5. Unusual need for adherence to a political decision already made
  6. Potential embarrassment from multifarious pronouncements by various departments

Extra-Judicial Constitutional Interpretation

  • Dellinger, “Presidential Authority to Decline to Execute Unconstitutional Statues
  • Argues the President has the authority to refuse to enforce unconstitutional statutes -- based in the “Take Care Clause” of Article II; “take care the laws be faithfully executed”
  • Should the clause be considered a power, a duty, or both?
  • Dellinger still embraces judicial supremacy, and argues the President should base his decision to enforce or not enforce on whether he things SCOTUS would find it constitutional or not
  • Note: Non-enforcement keeps a statute from SCOTUS due to the “case/controversy” requirement
  • Presidential Signing Statements
  • Signing Statements (1) Explain the president’s interpretation of the law (2) direct subordinate officers (3) explain features of a bill thought to be unconstitutional and which will not be enforced or enforced in limited ways
  • Signing statements do not bind courts and although they could theoretically be used as legislative history, court’s have generally declined to place much interpretive weight on them
  • Example: In interpreting Senator McCain’s 2005 amendment to the Detainee Treatment Act prohibiting torture -- President Bush adds “the executive shall construe [the amendment] in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief, and consistent with…limitations of the judicial power, which will assist in achieving the shard objective of protecting America

Modes of Constitutional Interpretation

  • (1) The Text -- Orginalism requires the words to be interpreted in light of the intent and/or understand of the drafters or the common person of the era
  • (2) Structural Approaches -- Determine the meaning from the overall structure and purpose of the constitution; it would otherwise be undemocratic to force the drafter’s meaning on the people when that is not what was consented to
  • (3) Natural Law / Natural Rights -- Rights that are in some sense deeper than the constitution; such that it would be absurd to read the constitution as conflicting upon these rights
  • (4) Other: Tradition, Precedent, Public Policy, Contemporary Mores, and/or International Norms (not exhaustive)

Marbury v Madison—1803—SCOTUS—Marshall, J.

Court strikes down the expansion of its original jurisdiction under the Judiciary Act of 1789; establishes judicial review

  • Every violation of a vested legal right deserves a remedy --  is entitled to his commission, but since that remedy was based on a statute which violates the constitution, the court must strike the statute -- i.e. no jurisdiction
  • The Federal government is one of enumerated, therefore limited, powers that cannot be expanded (structural) -- the written constitution is supreme to any legislative act by virtue of the Supremacy Clause (textual)

Baker v Carr—1962—SCOTUS—Brennan

SCOTUS considers the makeup of voting districts; sets the framework for nonjusticiable political questions

  • Unless one of the six “Baker Factors” is inextricable from the case, there should be no dismissal under the political question doctrine -- Otherwise there is no “risk of intolerable intrusion”
  • Realistically, this comes into play when there is a high chance SCOTUS would be ignored anyway

Martin v Hunter’s Lessee—1816—SCOTUS—Story

SCOTUS considers whether is has appellate review of state court decisions, legislation, and executive actions

  • The Judicial Power of shall extend to ALL cases…arising under this Constitution, the Laws of the United States…
  • The state’s quasi-sovereignty does not make them equivalent to foreign states -- state biases and loyalties could obstruct proper implementation of the constitution when uniformity is necessary and important

Cohen v Virginia—1821—SCOTUS

SCOTUS considers the extent of its power with regard to state cases

  • SCOTUS has the ability to review criminal cases and cases where any State is a party

Relevant Theories of Constitutional Interpretation

  • Orginalism -- embodies the view that Constitutional interpretation requires discovery of meaning which was fixed at the time the Constitution was adopted; Modern beginning can be traced to Reagan’s nomination of Robert Bork to SCOTUS
  • Critics felt Bork/Originalism provided the intellectual foundation for a broad-based rejection of the Warren & Burger Courts rationale striking down various forms of discrimination
  • Alternatives: Opponents of Orginalism take a variety of positions that are not all fully compatible with each other
  • Natural Law -- For the “framing generation” the concept of “higher law” which protects “natural rights” takes precedence over any written law -- the constitution was simply an attempt to reduce this body to written form and therefore natural law occupies a place above the Constitution
  • If this has force, should we be bound by the framers conception of natural law or by modern conceptions of natural law or by some objective standard of natural law? Consider the difficulties in application
  • Moral Arguments & the Search for Integrity -- Believes judges have the leisure, training, and political insulation to follow the ways of the scholar in pursuing government ends -- government must serve immediate needs as well s protect certain values within judicial expertise to discern -- Moral philosophy may play a role in providing arguments when legal materials leave gaps and uncertainties; used to make the entire system “fair & just” as opposed to the opposite
  • Tradition -- Argues the constitution can accommodate changing circumstances by deriving meaning not from exegesis but by a process by which each generation gives formal expression to the values it holds fundamental -- judges that appeal to the constitution must show the principles which they propose are related to express provisions and are rooted in history
  • Common Law & Consensus -- Constitutional law interpretation should be a common law process by which judgments emerge from particular cases rather than from fixed text of history -- in this view “meaning” evolves as modern circumstances put pressure on old meanings and as language changes to deal with those pressures -- in some way reflecting social consensus
  • Representation-Reinforcement -- Commitment to “deliberative democracy” should be the source of Con law principles used to interpret the constitution; while Courts should enforce unambiguous provisions, they should interpret ambiguous provisions in light of general commitment to democratic representation
  • Unsettlement -- Ambiguous constitutional text should be read as fostering disagreement and debate about its meaning; under this belief any constitutional settlement of political disputes is bound to produce losers who will nurse deep-seeded grievances -- on the other hand; allowing debate and the political process to work will create no losers

Legislative Power: The Commerce Clause


Article I, Section VIII, Clause 3 -- The Commerce Clause -- “provides the power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes

  • The Commerce Clause has become the main tool by which Congress legislates

Article I, Section VIII, Clause 18 -- The Necessary & Proper Clause -- provides the theoretical basis for Inherent & Implied Powers

  • McCulloch establishes Congress’s implied powers or those beyond the enumerated powers but that are linked to textually assigned powers and serve as means to the constitutional end
  • Inherent powers do not depend on any textual assignment and are thought to be inherent in the concept of sovereignty -- i.e. establish a flag, immigration control, foreign investment,
  • Analysis: “Is the means rationally related to the implementation of an enumerated power (Comstock/ Heart of Atlanta)

(I) Commerce Clause I: From the Marshall Court to the 20th Century

  • Beginnings of congressional regulation of interstate commerce and the national economy
  • Three main questions dominated:
  • 1) Whether the subject of regulation was properly treated as interstate commerce
  • (2) Are the purposes of the regulation consistent w/ constitutionally approved ends or is the regulation a pretext to achieve an unconstitutional end?
  • (3) Does the regulation run afoul of the powers reserved to the states in the 10th Amendment?
  • Showcased by a focus on Dual Federalism -- the view that the Federal and State governments were separate sovereigns with separate zones of authority

(II) Commerce Clause II: The New Deal and Civil Rights (Post-Depression)

  • There was a greater push for national legislative solutions to the Nation’s problems -- a period that started with SCOTUS striking major pieces of new deal legislation ended with a general relaxation of judicial constraints on the exercise of federal power -- Congressional motive becomes irrelevant to commerce analysis
  • FDR’s “court-packing” plan could have helped SOCUTS become more amenable to New Deal legislation

(III) Commerce Clause III: Modern Developments & The Rehnquist Court

  • Rehnquist becomes Chief Justice in 1987 & shares Reagan’s belief in the importance of state governments in the federal system
  • Manifested in Reagan’s Executive Order No. 12,612 -- (1) political liberties are best assured by limiting the national government (2) The presumption of sovereignty should rest with the individual states, uncertainty should be resolved against regulation at the national level

(IV) Commerce Clause IV: Modern Developments II & The Robert’s Court

  • NLRB was the most recent major expose on the Commerce clause -- all arguments must take this into account
  • Most modern commerce clause statutes actually limit the range of things which may be introduced into commerce -- that requires one to rethink & expand what it means to “affect” commerce -- could it be more of a logical relationship?

Analysis to this point

  • Lopez Factors: (1) Channels of interstate commerce (2) instrumentalities of / people within interstate commerce (3) intrastate activities with a substantial relation to interstate commerce
  • Substantial Relation inquiry -- is there an (a) economic activity with a (b) substantial effect on interstate commerce
  • (1) I aggregation complications? (2) Part of a larger regulatory scheme? (3) Congressional findings about effects on interstate commerce? (4) Jurisdictional element?
  • Perfect Jurisdictional Elements -- Requires a person to be moving in interstate commerce; by satisfying the element, you place yourself directly within Congress’s commerce power
  • Imperfect Jurisdictional Elements -- One may fall within jurisdiction based on aggregation or the item being regulated, but not within the Constitutional parameters of the Commerce power

**Note: Lopez/Raich is the controlling theoretical framework, but you would be a fool not to consider Robert’s in NLRB**

McCulloch v. Maryland—1819—SCOTUS

Challenge to the Constitutionality of the Federal Bank & State’s power to tax an instrument of the Fed.

  • The N&P clause does not limit congress to only those means which are absolutely necessary, to inquire into the degree of necessity would tread on legislative grounds; the court disdains all pretentions to such power
  • Let the end be legitimate and within the scope of the constitution, and all means which are appropriate, plainly adopted to that end, are not constitutionally prohibited, and are consistent with the letter and sprit of the law are constitutional. -- Those means which are convenient, useful, or essential is within Congress’s discretion
  • The Constitution derives its authority from state conventions, which is from the people directly -- While the federal government is limited in its powers, within its domain it is supreme
  • N&P clause can be used to justify nearly any means which has as its goal a constitutional end


  • The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the Federal Government
  • The power to tax is the power to destroy; that cannot coincide with the inherent power of preservation of the Federal government -- state authority to tax the federal government could threaten national security

(I) Gibbons v. Ogden—1824—SCOTUS

NY grants exclusive right to operate steamboat which conflicts with Federal license under statute passed under the commerce clause -- Does the commerce clause preempt NY’s exclusive license?

  • Where there is conflict, Federal laws preempt state law
  • Commerce describes the commercial intercourse between nations and parts of the nation which cannot stop at the external boundary line of each state -- the power would be useless if it could not pass lines
  • Within the commerce domain, congressional power is complete and may be exercised to the upmost extent subject to those limitations given in the constitution -- the political process is the only other limitation, not the courts -- action that effects the states generally, not one alone

(I) United States v. E.C. Knight Co.—1896—SCOTUS

Congress invokes the Sherman Antitrust act to prevent a manufacturing monopoly; allowed under commerce power?

  • Congress does not have the power to control the manufacture of a given thing -- the fact than an article is made for export to another state does not itself make the object one of “interstate commerce”
  • Dissent (Harlan) -- Whatever improperly obstructs the free course of interstate intercourse and trade may be properly reached by Congress -- a monopoly that obstructs

(I) The Shreveport Rate Case—1914—SCOTUS

TX carriers were prohibited, by the ICC, from charging separate rates for out-of-state trains; under commerce power.